Gilbert v. Richardson, No. S94G0735

• Court: Supreme Court of Georgia
• Writing for the Court: FLETCHER; All the Justices concur, except HUNT
• Citation: 452 S.E.2d 476,264 Ga. 744
• Docket Number: No. S94G0735
• Decision Date: 21 November 1994
• Parties: GILBERT et al. v. RICHARDSON et al.

Page 476

452 S.E.2d 476 264 Ga. 744 GILBERT et al.
v.
RICHARDSON et al. No. S94G0735. Supreme Court of Georgia. Nov. 21, 1994.
Reconsideration Denied Dec. 20, 1994.

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[264 Ga. 755] William R. Hill, Jr., Hill & Henry, Lafayette, Jerry H. Summers, Summers, McCrea & Wyatt, P.C., Chattanooga, TN, Charles N. Pursley, Jr., Pursley, Howell, Lowery & Meeks, Atlanta, for Emma Sue Gilbert et al.

George W. Carpenter, Stuart F. James, Leitner, Warner, Moffitt, Williams, Chattanooga, TN, Larry L. Cash, Strang, Fletcher, Carriger, Walker, Chattanooga, TN, Michael A. O'Quinn, Barnhart, O'Quinn & Williams, Atlanta, for Kathy J. Richardson et al.

Samuel W. Oates, Jr., Columbus, Elizabeth F. Bunce, Franklin, Taulbee, Rushing & Bunce, Statesboro, Craig T. Jones, Bauer, Deitch & Kline, P.C., Atlanta, for amici curiae.

[264 Ga. 744] FLETCHER, Justice.

We granted certiorari to determine whether this action against two Walker County officials is barred under the doctrines of sovereign [264 Ga. 745] and official immunity. We hold that sovereign immunity is waived to the extent of

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liability insurance coverage provided by Walker County's participation in the Georgia Interlocal Risk Management Agency (GIRMA) and that official immunity bans the Gilberts' claims against Deputy Sheriff Kathy Richardson. We conclude, however, that her immunity from personal liability does not extend to her employer and that Sheriff Albert Millard may be sued based on the county's waiver of sovereign immunity. Therefore, the Court of Appeals correctly affirmed summary judgment in favor of Richardson, but erred in affirming summary judgment in favor of Millard.

Emma and Tommy Gilbert brought suit against the Walker County sheriff and deputy sheriff seeking damages for injuries sustained in a September 1, 1991 collision with Richardson while she was responding to an emergency call. The Gilberts alleged that while acting within the scope of her employment with the sheriff's department, Richardson operated her vehicle in a negligent, careless, and reckless manner. With regard to Millard, the Gilberts alleged that both he and the sheriff's department were liable and responsible for Richardson's acts as her employer. Millard and Richardson filed a motion for summary judgment asserting, among other things, that Millard was absolutely immune from suit under the doctrine of sovereign immunity and that Richardson was immune from suit under the doctrine of official immunity because she was performing a discretionary function at the time of the accident. The trial court granted summary judgment to Millard and Richardson, holding that sovereign immunity was not waived by virtue of Walker County's participation in GIRMA and that Richardson's actions were discretionary in nature and, therefore, protected under the doctrine of official immunity. The Court of Appeals affirmed. Gilbert v. Richardson, 211 Ga.App. 795, 440 S.E.2d 684 (1994).

1. The common law doctrine of sovereign immunity, ¹ adopted by this state in 1784, protected governments at all levels from unconsented-to legal actions. Prince's 1837 Digest, p. 570; Crowder v. Department of State Parks, 228 Ga. 436, 439, 185 S.E.2d 908 (1971). The doctrine was given constitutional status in 1974, ² but the state remained absolutely[264 Ga. 746] immune from suit until 1983 after voters approved an amendment to the State Constitution waiving the sovereign immunity of the "state or any of its departments and agencies" in actions for which liability insurance protection was provided. Ga. Const. of 1983, Art. I, Sec. II, Par. IX. ³ In 1991, the constitutional doctrine of sovereign immunity was amended to extend sovereign immunity "to the state and all of its departments and agencies," and this immunity is to prevail except as specifically provided therein. Ga. Const. of 1983, Art. I, Sec. II, Par. IX(e). The 1991 amendment governs the Gilberts' cause of action because it arose on September 1, 1991 and the complaint was filed on November 24, 1992. See Donaldson v. Department of Transp., 262 Ga. 49, 53, 414 S.E.2d 638 (1992) (holding the 1991 amendment effective January 1, 1991).

2. In granting summary judgment, the trial court summarily held that sovereign immunity barred the Gilberts' claims against Millard. ⁴ The Gilberts contend that counties

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do not come within the definition of "agents or departments of the state" as contemplated by the 1991 amendment but are "autonomous, independent entities within the state politic" to which sovereign immunity does not extend. We do not agree.

The 1991 amendment provides, in pertinent part:

(a) The General Assembly may waive the state's sovereign immunity from suit by enacting a State Tort Claims Act, in which the General Assembly may provide by law for procedures for the making, handling, and disposition of actions or claims against the state and its departments, agencies, officers, and employees, upon such terms and subject to such conditions and limitations as the General Assembly may provide.

...

(e) Except as specifically provided in this Paragraph, sovereign[264 Ga. 747] immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.

The Georgia Tort Claims Act, OCGA §§ 50-21-20 to 50-21-37, was subsequently enacted to waive the sovereign immunity of the state for the torts of its officers and employees but expressly excludes counties from the ambit of this waiver.

In Toombs County v. O'Neal, 254 Ga. 390, 391, 330 S.E.2d 95 (1985), this court held that the 1983 amendment's reservation of immunity to the "state or any of its departments or agencies" included the counties of the State of Georgia. See also Nelson v. Spalding County, 249 Ga. 334, 290 S.E.2d 915 (1982) (extending sovereign immunity to counties under the similar language provided in Art. VI, Sec. V, Par. I of the 1976 State Constitution). The language used in the 1991 amendment is virtually identical to that used in the 1983 amendment to describe the entities to which sovereign immunity applies. With full knowledge of the construction placed upon the similar language of the 1983 amendment, Poteat v. Butler, 231 Ga. 187, 188, 200 S.E.2d 741 (1973), the legislature proposed and the voters of this state ratified the 1991 amendment. Absent any evidence that the legislature intended a different interpretation or to indicate that the electorate did not intend to extend sovereign immunity to counties, we hold the 1991 amendment's extension of sovereign immunity to "the state and its departments and agencies" must also apply to counties. See Bibb County v. Hancock, 211 Ga. 429, 432, 86 S.E.2d 511 (1955); Thompson v. Talmadge, 201 Ga. 867, 885, 41 S.E.2d 883 (1947) (courts should accord virtually identical language in successor provisions the same construction given the original language); see also Thomas v. Hospital Auth. of Clarke County, 264 Ga. 40, 440 S.E.2d 195 (1994) (identifying counties as departments or agencies of the state).

3. Having determined that sovereign immunity extends to counties under the 1991 amendment, we must consider whether and to what extent the legislature has provided for the waiver of a county's sovereign immunity. Millard contends that under subsection (a) of the 1991 amendment, the Georgia Tort Claims Act is the sole means by which the legislature is authorized to waive immunity. Accordingly, he argues that he is immune from suit because the tort claims act specifically excludes counties from the list of entities to which the waiver applies.

It is a basic rule of construction that a statute or constitutional provision should be construed "to make all its parts harmonize and to [264 Ga. 748] give a sensible and intelligent effect to each part[, as i]t is not presumed that the legislature intended that any part would be without meaning." Houston v. Lowes of Savannah, Inc., 235 Ga. 201, 203, 219 S.E.2d 115 (1975). Subsection (a) of the 1991 amendment authorizes the legislature to

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"waive the state's sovereign immunity from suit by enacting a State Tort Claims Act" which may provide for the "making, handling, and disposition of actions or claims against the state and its departments, agencies, officers, and employees." Nothing in subsection (a) evidences an intent to restrict to a state tort claims act the legislature's authority to waive immunity.

Rather, subsection (e) of the 1991 amendment confers upon the legislature the authority to waive sovereign immunity "by an Act ... which specifically provides that sovereign immunity is thereby waived and the extent of such waiver." Subsection (e) directly addresses the issue of the legislature's authority to waive immunity and authorizes the waiver of the sovereign immunity of the state and its departments and agencies by any act of the legislature that meets the stated criteria. As stated by then Chief Justice Clarke in Curtis v. Board of Regents, 262 Ga. 226, 227-228, 416 S.E.2d 510 (1992):

The 1991 constitutional amendment, when viewed in light of the Georgia Tort Claims Act that was passed under its authority, does not evidence any intent by the Legislature to withdraw the waiver of sovereign immunity. Rather, the apparent intent of the amendment and the Tort Claims Act enacted under its authority is to redraw and redefine the terms of the State's waiver of sovereign immunity. The constitutional amendment is a change in the terms of the waiver of sovereign immunity, not a withdrawal of the existing waiver.

Considering the 1991 amendment as a whole, we hold that sovereign immunity is waived by any legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver. This construction of the 1991 amendment is consistent with...